In a previous blog, I assailed the anachronistic and parochial views of the Commission on Election (Comelec) when it denied the petition of the gay sector (Ladlad) for accreditation under the law on the party-list system.
I categorized the Comelec’s thinking as being grounded on the age-old, puritanical and holier-than-thou worldview of Queen Victoria.
Ladlad’s lawyers have appealed the Comelec decision to the Supreme Court.
Whatever decision the Court will issue on the matter will surely be a landmark constitutional opinion, worthy of inclusion in future Philippine bar examinations.
At any rate, below is a summary of the salient points of the petition of Ladlad, based on an item written by its leader, Prof. Danton Remoto, as published in the Philippine Daily Inquirer.
Ang Ladlad
No longer on the margins of the page
by Danton Remoto
Philippine Daily Inquirer
First Posted 21:32:00 01/09/2010
(Editor’s Note: This is a shortened version of the petition filed by Ang Ladlad with the Supreme Court on Dec. 5 to reverse a Comelec ruling denying the group accreditation for the party-list elections. The group’s counsels are Nicolas Pichay, Clara Rita Padilla, Ibarra Gutierrez and Carlo Alcala.)
MANILA, Philippines—Suddenly, we are back in the middle Ages! The resolution of the Commission on Elections (Comelec) denying Ang Ladlad accreditation to run under the party-list system is an example of society’s marginalization of lesbians, gays, bisexuals and transgender (LGBT).
The resolution demonizes the LBGT community by accusing us of indulging in imaginary acts of immorality that the poll body deems “a threat to the youth.” More importantly, the resolution violates rights guaranteed under the Constitution and laws of universal application.
Thus, Ang Ladlad filed a petition for certiorari with application for a writ of preliminary mandatory injunction, with the Supreme Court last Dec. 5. We are asking the high court to annul the Comelec resolution dated Nov. 11 denying the accreditation of Ang Ladlad and the resolution dated Dec. 17 denying our motion for
reconsideration.
The issues, especially on the application for an injunction, must also be settled soon, given the Jan. 25 deadline for the printing of ballots.
Second division ruling
Ang Ladlad is an organization of men and women who identify themselves as lesbians, gays, bisexuals or transgendered individuals.
Last year, on Aug. 17, the group applied for party-list accreditation with the Comelec. In a hearing on Sept. 24, before the Comelec second division, I presented evidence to prove Ang Ladlad’s SEC registration, number of members and their location, its being a marginalized group and all other qualifications.
In its resolution, the second division said that although the group had complied with all the requirements for accreditation under the party-list system, Ang Ladlad was being denied accreditation because it tolerates immorality. Proof? The division cited passages from the Bible and the Koran, adding that Ang Ladlad offended religious beliefs.
As if sharing the outrage of the LGBT community, local and foreign institutions and corporate entities, and public figures issued separate expressions of support for Ang Ladlad.
Grave abuse
The group maintains that its petition to the Supreme Court should be granted based on the following:
The Comelec committed grave abuse of discretion amounting to lack, or excess of jurisdiction, when it made conclusions unsupported by records.
Its resolution violates the following provisions of the Constitution:
—Article III, Section 5: “No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test shall be required for the exercise of civil or political rights.”
—Article II, Section 6: “The separation of the Church and State shall be inviolable.”
—Article III, Section 1: “No person xxx (shall be) be denied the equal protection of the laws.
—Article III, Section 4: “No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
The Comelec violated international law which the Philippines is bound to observe.
Unsupported by evidence
The resolution capitalized on our definitions of LGBT on the one hand, and sexual orientation on the other, in refusing Ang Ladlad’s registration on moral grounds.
It said Ang Ladlad tolerates same-sex relations, which allegedly go against the teachings of certain religions. Citing the Comelec law department’s comment, the resolution added that advocates of the group were promoting sexual immorality.
A cursory perusal of the Comelec’s point reveals that the commission equated Ang Ladlad’s tolerance of the beliefs of those “differently oriented” with the group’s supposed acts or practice of immorality.
The Comelec invoked Article 201 of the Revised Penal Code, which deals with the glorification of criminals, violence in shows, obscene publications and lustful or pornographic exhibitions. It used the article to support its point that Ang Ladlad was espousing doctrines contrary to public morals.
Affections
It may not be something amiss to say that the principle of ejusdem generis (of the same kind) is enough to declare that homosexuality per se does not fall within the ambit of the penal law. That one’s affections toward people of the same sex easily translate into lust and immorality is a non sequitur.
On a deeper analysis, Ang Ladlad may not be charged with the felony because first, the element of publicity in its purported adherence to the doctrines is lacking. It must be remembered that I gave the definitions in the context of the questions posed to me at the hearing.
Moreover, the resolutions failed to see the focal point of the group’s objective to represent a marginalized sector of society, disadvantaged merely because of their sexual orientation and gender identity. In other words, I defined homosexuality or sexual orientation within the protected zone of the constitutional right to privacy.
Even the Vatican has publicly condemned violence and discrimination against homosexuals, including penal legislation against them. In a statement last Dec. 10 and read before a United Nations General Assembly meeting, the Vatican said it “opposes all forms of violence and unjust discrimination against homosexual persons, including penal legislation which undermines the inherent dignity of the human person ... The murder and abuse of homosexual persons are to be confronted on all levels, especially when such violence is perpetrated by the State.”
Delisted as aberration
Furthermore, 30 years ago, homosexuality was already delisted from the books as a medical/psychological aberration. Homosexuality is neither a conscious choice nor a contagious illness that is transmitted as in the leprosy of old, or in HIV/AIDS now (although the stigma and discrimination are present in these conditions as well).
To put it mildly, the view asserted by the biblical scholar Lehman Strauss that the Comelec cited was obsolete. Strauss was a scholar whose heyday was in the 1950s.
He lived at the start of the past century and his pronouncements could not have been backed up by scientific evidence. As I succinctly remarked, “How would I have taught in one of the country’s exclusive Catholic schools (Ateneo de Manila University) for 22 years if I were a threat to the youth?”
No deceit or falsification
Quite preposterously, too, the Comelec said: “Petitioner should be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules or regulations relating to the elections.”
How the poll body drew its inference that Ang Ladlad made untruthful statements of fact is a fathomless mystery. It seems to be trapped in a whimsical world where it is acceptable for one to conjure up evidence simply from thin air.
Be that as it may, assuming that the Comelec was referring to the Penal Code provision that it cited, Ang Ladlad may not be faulted for saying it had not violated such law. Neither I nor the other officers of Ang Ladlad have been indicted for violating the provisions, much less convicted in any court of law.
Significantly, the law allegedly violated should specifically pertain to elections, which the Revised Penal Code is not.
Secular state
The Constitution declares that the Philippines is a secular state by stating in Article II, Section 6 that the “separation of Church and State shall be inviolable.” The rationale behind the principle of separation of church and state is to protect the government from the influence of a dominant religious group or institution. Under this principle, the Constitution prohibits the religious tyranny of the majority being exercised to suppress the rights of the few.
Under the same principle, Article III, Section 5 of the Constitution was included to ensure that the government may not force anyone to support or participate in a religion.
The denial of the accreditation of Ang Ladlad, insofar as it justifies the exclusion by using a religious dogma or belief, violates these constitutional guarantees against the establishment of religion.
Making references to passages from the Bible and the Koran indicates the religious bias that the Comelec applied in determining the merit and subsequent denial of Ang Ladlad’s application.
Incidentally, the poll body is also forcing a segment of the population to abide by the religious beliefs of the majority belonging to the Roman Catholic and Muslim faiths.
Validity of love
This violates the freedom-of-exercise clause, assuming of course that that segment has a wholly distinct belief in the biblical validity of love regardless of whether or not it is directed toward another of similar gender or sexual orientation.
But then again, even the leadership of the Roman Catholic Church through the Vatican Council, is averse to employing religious coercion. In 1965, the Council said:
“[T]he human person has a right to religious freedom. This freedom means that all men [and women] are to be immune from coercion on the part of individuals or of social groups and of any human power, in such [ways] that no one is to be forced to act in a manner contrary to his [or her] own beliefs xxx.”
Speaking through then Associate Justice Reynato Puno the Supreme Court held in the case of Estrada v. Escritor that “morality” must be understood in its secular conception.
In the case, the high court alluded to the nexus between religious morality and the establishment of a state religion or the effective decimation of the individual’s freedom to exercise his own religion, thus:
The Comelec makes the most hostile of discrimination as it deprives Ang Ladlad accreditation using a standard of measure that makes a classification not justified by the circumstances at hand. The Constitution provides in Article III: Section 1. “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.”
Basis for disqualification
At their core, the resolutions consider sexual preference—by itself—to be the basis for a disqualification from being voted for into office. There may be substantial distinctions between marginalized heterosexuals like straight women, on the one hand, and homosexual women or lesbians, on the other. Truly, not all women are created equal. Stated sardonically, “some men (or women) are more equal than others.”
Nonetheless, the inevitable question becomes, “is the distinction between straights and gays essential to the intent of the law to encompass as many representatives who may potentially contribute to sound legislation?”
Beyond creative arts
Ang Ladlad believes the resounding “No” to the issue posed has oftentimes had a res ipsa loquitur (the thing speaks for itself) feature to it. The chair of Ang Ladlad may himself exemplify the fact that gay men must not be confined by society to the creative arts, for he is at par with or perhaps even better than any other straight man in Congress when it comes to educational qualifications and intellectual discourse.
Apart from violating the Constitution, the Comelec resolution is contrary to the principles in international human rights law. Moreover, it constitutes a serious breach of Philippine state obligations under international law.
Article 2(1) of the International Covenant on Civil and Political Rights (ICCPR), a treaty to which the Philippines is a state party, explicitly provides that “Each state party to the present covenant undertakes to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights in the present covenant, without distinction of any kind, such as race, color, sex,
language, religion, political or other opinion, national or social origin, property, birth or other status.”
Among these rights that must be respected and ensured, “without distinction of any kind” are the right “to take part in the conduct of public affairs, directly or through freely chosen representatives” and the right “to vote and be elected at genuine periodic elections,” both of which are guaranteed under Article 25 of the ICCPR.
It must be pointed out that for the purpose of applying Article 2(1) of the ICCPR, the United Nations Human Rights Committee (UNHRC), a body created under Article 28 of the ICCPR, has ruled, in a landmark decision involving a successful challenge to Australian laws criminalizing homosexual acts, that “sexual orientation” is included in reference to “sex” in the provision.
In other words, sexual orientation cannot be used as a basis for denying rights under the ICCPR, which is precisely what the Comelec did in denying Ang Ladlad’s petition for registration.
Discrimination
Discrimination is anathema to the basic and general principles relating to the protection of human rights.
The Comelec resolution contravenes the 2003 recommendations of the UNHRC on the Philippines when it urged the Philippine government “to pursue its efforts to counter all forms of discrimination” pertaining to sexual orientation and to “strengthen human rights education to forestall manifestations of intolerance and de facto discrimination.”
A United Nations committee tasked with monitoring the Convention on the Elimination of All Forms of Discrimination against Women, a treaty to which the Philippines is a state party, has asked state parties to reconceptualize lesbianism as a sexual orientation and to abolish penalties for its practice.
Equal representation
In the same vein, the Yogyakarta Principles, a document developed and unanimously adopted in 2007 by a distinguished group of human rights experts from diverse regions and backgrounds, underscores that “everyone is entitled to enjoy all human rights without discrimination on the basis of sexual identity.”
No idea is more powerful than one whose time has come, said the German writer Goethe.
The idea of equal representation for all will find a voice and resonance if the Supreme Court reverses the Comelec decision that consigns Ang Ladlad and the group it represents to the very margins of the page.
(Danton Remoto is the chair of Ang Ladlad. He was an associate professor of English at Ateneo de Manila University, and a scholar of the British Council and of the Fulbright Foundation.)
See:
http://opinion.inquirer.net/inquireropinion/talkofthetown/view/20100109-246416/Ang-Ladlad
